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State v. Vivone7/23/1999
. He spends that time trying to do it, and finally decides there's no way. 'I can't clean it up. I've killed these two people. It's there. People know I was over here.'"
Defendant argues that the trial court "plainly erred" in allowing the prosecutor to make the italicized remarks to the jury. He asserts there was no evidence that he made those statements and, thus, the State was arguing matters not in evidence. Defendant characterizes the questioned argument as bearing directly upon the critical issues of deliberation and premeditation and insists that allowing the remarks led to "manifest inJustice" and deprived him of a fair trial.
By requesting plain error review, Defendant concedes what the record shows; namely, that he did not contemporaneously object to the prosecutor's alleged improper argument, and he did not raise the issue in his motion for new trial. Consequently, Defendant's fourth point can be examined only under the plain error standard of Rule 30.20.
Appellate courts of this state "'rarely grant relief on assertions of plain error as to closing argument . . . because, in the absence of objection and request for relief, the trial court's options are narrowed to uninvited interference with summation and a corresponding increase of error by such intervention.'" State v. Bogard, 836 S.W.2d 87, 89 (Mo.App. 1992) (quoting State v. Clemmons, 753 S.W.2d 901, 907-08 (Mo.banc 1988)).
Trial strategy looms as an important consideration in any trial; accordingly, assertions of plain error concerning matters contained in closing argument are generally denied without explication. State v. Wood, 719 S.W.2d 756. 759 (Mo.banc 1986); State v. Smith, 979 S.W.2d 215, 219 (Mo.App. 1998). In State v. McMillin, 783 S.W.2d 82 (Mo.banc 1990), our supreme court refused to review the defendant's claims with respect to closing argument under the plain error standard, saying, "'The plain error rule should be used sparingly and does not justify a review of every trial error that has not been properly preserved for appellate review.'" 783 S.W.2d at 98 (quoting State v. Valentine, 646 S.W.2d 729, 731 (Mo. 1983)). This court has, likewise, refused plain error review of unpreserved claims of trial court error concerning closing argument. See, e.g., Smith, 979 S.W.2d at 219 ; Bogard, 836 S.W.2d at 89; State v. Jordan, 834 S.W.2d 900, 901 (Mo.App. 1992).
Adhering to the foregoing, this court expressly refuses to review Defendant's claims with respect to closing argument. Defendant waived his claim of error by failing to preserve the alleged error. Id. at 901 . Perhaps Defendant "considered the remarks inconsequential not warranting objection[,] or as trial strategy [counsel] set the stage for built in error." See Wood, 719 S.W.2d at 760. Whatever the reason for Defendant's failure to object, we decline to exercise our discretion to review Defendant's fourth point for plain error.
The judgment is affirmed.
Separate Opinion:
None
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